Madhya Pradesh High Court
Idali Bai vs The State Of M.P. on 18 April, 2016
-: 1 :- Criminal Appeal No.502/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
DIVISION BENCH : Hon'ble Shri P.K. Jaiswal
and Hon'ble Shri Ved Prakash Sharma, J.J.
Criminal Appeal No.502/2006
Idali Bai
Vs.
State of M.P.,
Police Station-Alirajpur, Jhabua
-x-x-x-x-x-x-x-x-x-x-x-
Smt. Sharmila Sharma, learned counsel for Appellant.
Shri Deepak Rawal, learned Deputy Advocate General
for the Respondent/State.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(Delivered on 18th day of April, 2016) Per : Ved Prakash Sharma, J.
This appeal has been preferred against judgment and Order dated 21/02/2006 passed by ASJ (Fast Track), District Alirajpur in S.T. No.114/2005 whereby the Appellant has been convicted for the offences under Section 302, 318, 201 of IPC and sentenced as under :-
-: 2 :- Criminal Appeal No.502/2006
Section Sentence Fine In default
302 IPC Life Rs.200/- 6 months RI
Imprisonment
318 IPC 6 months RI Nil
201 IPC 2 years RI Rs.100/- 1 month RI
The sentences have been directed to run concurrently.
3. The prosecution story, briefly stated, is that on 4th of March, 2005 around 4.00 pm. Ida (PW-1), resident of village-Dhodsa, Police Station- Alirajpur, found some foul smell coming out from 'Kotha' (a place to keep cattles) belonging to Budhibai (DW-1), who was residing nearby his house with her sole daughter Appellant Idlibai. Ida (PW-1) thereupon went inside the 'Kotha' with his wife Vesti Bai (PW-2) and found dead body of a new born child lying there in a corner. He noticed that right hand and left leg of the dead body was eaten away by dogs etc., the face was crushed and a rope had been tied around the neck. Ida (PW/1) informed Keshar Singh (PW/4), Vesta (PW-5), and Madhav Singh (PW/8) and village Chowkidar Nansingh (PW/3) about this. Thereafter they all went inside the 'Kotha' and saw the dead body lying there.
4. As per prosecution, Ida (PW-1) and the aforesaid witnesses thereafter enquired from Budhibai (DW-1)
-: 3 :- Criminal Appeal No.502/2006 and her daughter Idlibai (the Appellant) about the child, whereupon Appellant Idlibai disclosed that she had illicit relations with her distant relative Dhan Singh @ Nan Singh (PW/12), and had conceived from him and ultimately delivered a child on Monday (28/02/2005) at around 8-9 PM. That apprehending social stigma she strangulated the newly born child by tying rope around his neck and thereafter disposed of the dead body by burring the same inside the 'Kotha'.
5. Next day i.e. on 05/03/2005, around 08.30 AM Ida (PW/1) lodged First Information Report (Ex.P/1) regarding this incident at Police Station-Alirajpur, on the basis of which a case under Section 302 and 201 of IPC was registered against the Appellant. An inquest under Section 164 of Cr.P.C. was carried out on the dead body, as per Panchnama Ex.P/12-A, which revealed that a new born child was put to death by strangulation.
6. The investigation ensued. B.L.Solanki (PW/10), ASI, Police Station-Alirajpur inspected the spot and prepared spot map Ex.P/11. The dead body was sent for postmortem. Dr. N.S. Dabar (PW/7), Medical Officer, Civil Hospital, Alirajpur conducted autopsy on the dead body on 05/03/2005. Vide report Ex.P/9 he found that right upper limb from shoulder
-: 4 :- Criminal Appeal No.502/2006 joint and left lower limb from hip joint were missing. Normal structure of face including eyes, ears etc. were eaten away by insects etc. A ligature mark was found around the neck. Dr. N.S. Dabar (PW/7) opined that the new born male child had died due to asphyxia as a result of strangulation and that the death was homicidal in nature caused within 5 days of the examination.
7. During the course of investigation Ida (PW/1), Vesti Bai (PW-2), Nansingh (PW/3), Keshar Singh (PW/4), Vesta (PW/5) and Madho Singh (PW/8) were interrogated and their statement were recorded under Section 161 of Cr.P.C. The Appellant was arrested and on completion of the investigation a charge-sheet for offences under Section 302, 318, 201 of IPC was filed against her before the concerned Court. In due course, the case was committed to the Court of Sessions. The Appellant was charged for offences under Section 302, 318 and 201 of IPC. She abjured the guilt.
8. The prosecution in order to bring home the charges had examined as many as 12 witnesses. In defense, the Appellant examined her mother/Budhibai (DW/1).
9. On conclusion of the trial, the learned Addl. Sessions Judge convicted and sentenced the Appellant
-: 5 :- Criminal Appeal No.502/2006 on all counts as mentioned hereinabove. Hence, this appeal.
10. Challenging the findings regarding conviction, Smt. Sharmila Sharma, learned counsel for the Appellant, has submitted that conviction was not warranted in view of the fact that the alleged extra judicial confession has not been proved and that there are no other incriminating circumstances forming a complete chain so as to draw an inference of guilt. Therefore, the appeal deserves to be allowed.
11. Per contra, Shri Deepak Rawal, learned Deputy Advocate General, supporting the impugned judgment has submitted that it is fully established from the prosecution evidence that 5 to 7 days prior to the recovery of dead body of the new born child, the Appellant delivered a child and that these two circumstances taken together indicate towards the guilt of the Appellant.
12. We have considered the rival submissions made by learned counsel for the parties and perused the record. The point for consideration is whether the findings recorded by the learned ASJ convicting the Appellant for offences under Section 302, 318, 201 of IPC are sustainable ?
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13. The prosecution case primarily depends upon the confessional statement said to have been made by the Appellant to Ida (PW/1), Vesti Bai (PW-2), Nansingh (PW/3), Keshar Singh (PW/4), Vesta (PW/5), Madho Singh (PW/8) and of course Budhibai (DW-1), the mother of Appellant. However, the same has not been made the basis of conviction by the learned Addl. Sessions Judge, and rightly so, because none of the aforesaid witnesses have supported the prosecution version on this point except Nan Singh (PW/3), who after denying about the alleged confession in his examination-in-chief, on being suggested by the prosecution, has stated in further examination that the Appellant confessed before him and other persons of the village. However, again taking a U-turn, this witness has deposed in the cross-examination that the Appellant did not make any confession before him. In view of the diabolical manner in which this witness has deposed, his testimony on the point of extra judicial confession is not at all creditworthy and, hence, liable to be ignored.
14. The learned ASJ has taken a view that the charges framed against the Appellant are proved beyond reasonable doubt because a complete chain of
-: 7 :- Criminal Appeal No.502/2006 circumstance is proved establishing beyond reasonable doubt the guilt of the Appellant .
15. The law relating to proof of guilt by circumstantial evidence has been elaborately explained in Hanumant Raojibhai vs. State of Madhya Pradesh, AIR 1952 SC
343. As laid down by the apex Court following 5 conditions must be fulfilled before a conviction can be based on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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16. The findings recorded by the learned Addl.
Sessions Judge in the instant case are required to be examined on the basis of the aforesaid touchstone.
17. Though Dr. Rani Kushwaha (PW/6), who examined the Appellant on 06/03/2005, has opined that the Appellant had delivered a child within 12 days of the examination. However, in absence of any scientific evidence of DNA fingerprinting, coupled with the fact that the Appellant has taken a specific plea that having illicit relationship with Dhan Singh @ Nan Singh (PW/12), she had conceived and later on sometimes in February 2015 delivered a stillborn child, it cannot conclusively be said that the child delivered by the Appellant was the same child whose dead body was recovered from the 'Kotha'.
18. In this connection it is further noticeable that the 'Kotha' from where the dead body of new born child was recovered, as stated by Investigating Officer B.L. Solanki (PW/10) in para 7 of his statement, is an open place. Hence, the hypothesis that the child, whose dead body was recovered from 'Kotha', might have belonged to someone else, cannot be totally ruled out.
19. Of course, the factum of delivery of a child by the Appellant and recovery of dead body of new born child around the same time from her 'Kotha' may give rise
-: 9 :- Criminal Appeal No.502/2006 to a reasonable suspicion with regard to her involvement in the alleged crime, however, as laid down in Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, - 'suspicion, howsoever great it may be, cannot take the place of legal proof.'
20. In the aforesaid background, we are of the considered view that the prosecution has failed to establish a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Appellant and that in all human probability the alleged offence was committed by the Appellant. Hence, the charges against the Appellant for offences under Section 302, 318 and 201 of IPC are not established beyond reasonable doubt and consequently the conviction recorded by the learned ASJ is liable to be set aside.
21. Accordingly, this appeal is allowed and the Appellant is acquitted of the charges under Section 302, 318, 201 of IPC. The Appellant, who is in Jail, is directed to be released forthwith, if not detained in any other case.
(P. K. Jaiswal) (Ved Prakash Sharma)
Judge Judge
Aiyer*